Williams v R

• Jurisdiction: Trinidad & Tobago
• Judge: Bernard, C.J.
• Judgment Date: 26 May 1995
• Neutral Citation: TT 1995 CA 12
• Docket Number: Criminal Appeal No. 96 of 1992
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 26 May 1995

Court of Appeal

Bernard, C.J., Gopeesingh, J.A., Permanand, J.A.

Criminal Appeal No. 96 of 1992

Williams

and

R

Mr. T.R. Guerra, S.C., Mr. I. Khan and Miss P. Elder for the applicant.

Mr. A. Carmona for the respondent.

Criminal law - Mens rea — Appellant convicted of manslaughter and sentenced to a term of 15 years imprisonment — Applicant was given gun and thought it was a toy gun he had fired — Whether the applicant had brought about death of the deceased knowingly or by gross negligence or whether the death was brought about as a result of a genuine mistake of fact on the part of the applicant.

Bernard, C.J.

1 Hubert Williams (“the applicant”) was convicted by a jury at the Port of Spain Assizes of the unlawful killing (manslaughter) of Ishmael Ali on 1st January, 1992 and was sentenced to a term of imprisonment of twelve years hard labour. He has sought leave to appeal against the conviction on seven grounds. Six of these were withdrawn and a new one added with leave of the court. But before dealing with these two grounds, it will be convenient to allude to the evidence called at the trial.

THE EVIDENCE:

2 The applicant is a senior police officer. The incident occurred shortly after midnight on 31st December (Old Year's Day) and a few minutes into the dawn of the New Year (New Year's Day). It is common ground that for the purpose of ushering in the New Year the head of the family, Alfred Boodoosingh, had arranged a function at his home at La Pastora Road in Santa Cruz at which a host of his relatives and a few friends including the deceased (his brother-in-law) and the applicant and his wife were invitees and were in attendance. Much feasting, merriment and imbibing of alcohol were taking place. As the Old Year was coming to its end and with New Year on the horizon, there was agreement that the participants should all leave the upstairs portion of the building, where they were celebrating, and proceed to the grounds outside the building to gather there and continue the celebration into the New Year. This they all did. The lighting in this area was not quite good and more particularly so (as emphasised by both attorneys for the applicant and the State) since it was then late into the night. As the New Year arrived, there was gay abandon and revelry among the crowd, and pleasantries were being exchanged. And during all this, there were numerous loud explosions of bamboo and of fire crackers outside the premises and in the surrounding neighbourhood; There was also the loud bursting of fire crackers on the premises itself. These are features which are common and customary in the life of this country on this night and at about this time. As a matter of fact, so gay was the merriment that in the course of it a child of a member of the family exploded a fire cracker the sparks from which latched on to her dress and caught it a fire. Happily, aid was rushed to her and it was put out. It was, no doubt, the sign of a most tragic event that was to follow within the instant of each other.

3 During all these exchanges of pleasantries, merriment, loud explosions and commotion Alfred Boodoosingh, unknown to the other celebrants, went back to his house, fetched his licensed firearm, which was quite “tiny”; and rejoined the group: In the midst of all this spirit of camaraderie, he fired off his firearm and passed it to the deceased who did likewise; and later it was passed on to the applicant with the invitation to do the same. No one told the applicant that what was being passed to him was a loaded firearm.

4 On receiving the firearm the applicant, who was by that time some distance away from the deceased and who at the time was not standing erect but was somewhat in a swaying motion, obliged. The deceased then fell to the ground. Except for Alfred Boodoosingh, of course, everybody felt that this act on the part of the deceased was all fun, for he himself was displaying that sort of mood and was known to be in the habit of indulging in jocular behaviour regularly. It was only after Calina Boodoosingh — the wife of Alfred Boodoosingh — having approached the deceased and realising what was his condition, raised an alarm, that those present realised what was the matter. Pandemonium then reigned. In the case of the applicant, he immediately expressed surprise and concern and thereafter rebuked Alfred Boodoosingh. The deceased was rushed to hospital accompanied by Alfred Boodoosingh, his son Neil Boodoosingh and the applicant but succumbed to his death.

5 In his examination in chief, Neil Boodoosingh testified that on the way to the hospital the applicant had invited them to say that someone else passing by had shot the deceased. It would appear from the trial judge's charge to the jury that the applicant's invitation to the party was that this act was done by someone in a passing car. Whatever be, the fact remains that the applicant denied this and, furthermore, Neil's testimony found no support from Alfred Boodoosingh himself. We shall come to this again later in this judgment.

6 Later that same day, the applicant handed over a written statement to the chief investigator, Sorzano Arietas. It was tendered in' evidence by the prosecution. As the contents of this statement are material to this appeal, it is reproduced hereunder in extenso:–

“No.15 Weekes Trace,

San Juan,

1st January, 1992.

Hubert Williams States,

I am a Senior Superintendent attached to Police Head Quarters.

Upon invitation, my wife Joyce and I attended an Old Year's night get together at the home of a friend — ALFRED BOODOOSINGH at Santa Cruz. We. arrived at this address about 9:45 p.m. on Tuesday 31st December, 1991.

In the company of ALFRED BDODOOSINGH, his wife, Ishmael ALI, ALFRED'S brother in law, his children, several other friends and relatives of the BOODOOSINGHS, we sat in the verandah of the upstairs section of the dwelling house. We partook of a few drinks and some light refreshments.

When it was about 11:55p.m. it was decided that we should all go outside on the lawn for the arrival of the New Year. We all went outside and greeted one another, when The New Year commenced.

Almost simultaneously I heard explosions normally heard at the beginning of the New Year coming from the vicinity.

At this time, my wife was standing next to me. ALFRED BOODOOSINGH who was about twenty-five (25) feet away from me began walking in my direction. As he reached where I was, he said “Chief fire something”, and he handed me what appeared to be and which I concluded was a toy pistol, and as he gave it to me, I pointed it in a South Westerly direction, and pressed the trigger. I heard explosions and I saw ISHMAEL ALI throw himself to the ground. I formed the view that he was making fun of himself, but about 30 seconds afterwards, persons went to where he was lying and said he was shot. At first, I doubted what was said, but upon investigating I realized that he was bleeding from a wound at his side.

I checked the article given me by BOODOOSINGH and realized that it was a firearm and I rebuked BOODOOSINGH who was standing close to me. I honestly felt that what was given to me was a toy gun.

With the help of BOODOOSINGH and his son NEIL, ALI was placed in BOODOOSINGH'S car and rushed to the Port of Spain General Hospital where I was informed that he died whilst being attended to. I advised BOODOOSINGH to report the matter to the police. I accompanied the injured man to the hospital.

H. Williams

1/1/92. “

7 The applicant gave evidence on oath. He relied upon his written statement which he had handed over to Arietas on the very day of the incident and went on to amplify his account consistent with this statement. In effect, his statement was the axis upon which his answer to the prosecution's charge was mounted. Nevertheless, in his charge to the jury the trial judge dealt with it quite cavalierly in that he simply glossed over it by referring to it and adding nothing more. Evidently, he did not appear to attach much or any importance to it. In the result, the jury may well have adopted a similar approach to it. This was a serious flaw in the summing up and was not a fair approach to the applicant's case. The statement was an important bit of evidence. It was cardinal to the issue in the case and central to the issue of the truthfulness of his defence and particularly so having regard to its proximity to the event during the wee hours of that day.

8 This is a convenient stage to observe that the kernel of the prosecution's case in regard to culpability was that the applicant, being a long serving police officer who had been trained in musketry, was certain to know that what he had in his hand that early morning was nothing other than a firearm. But the evidence and explanation of the applicant found some support from the firearm experts themselves. They were Louis Mark, a qualified armorer who was called by the prosecution itself and Cecil Beckles himself also an armorer, who was called by the defence. Besides, we would remind that the gift of infallibility was never bestowed upon mankind.

THE ISSUE;

9 The sole though very important issue that arose for determination in this case was whether the applicant had brought about the death of the deceased knowingly or by a grossly reckless act on his part as contended for by the prosecution or whether his death was brought about as a result of a genuine mistake of fact on the part of the applicant as contended for by the defence. In, this latter regard, it is well to be remembered that the applicant neither called evidence of intoxication nor the use of drink as an excuse for his action and, further, nothing of the kind was urged either at the trial or before this court.

BASIC INTENT AND MENS REA

10 Involuntary manslaughter, such as was the case here, is a crime of basic intent. It does not, therefore, require a specific intent to be proved before the...